| Matter of Elliott v Fischer |
| 2010 NY Slip Op 04305 [73 AD3d 1366] |
| May 20, 2010 |
| Appellate Division, Third Department |
| In the Matter of Willie C. Elliott, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review two determinations of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner became involved in a loud verbal exchange with another inmate during whichpetitioner told the inmate that he would "bury [him] underneath the fence." As a result, petitionerwas charged in a misbehavior report with creating a disturbance and making threats. Thereafter,confidential information was obtained which revealed that petitioner had arranged to have thesame inmate assaulted by a third inmate. Petitioner was therefore charged in a secondmisbehavior report with conspiring to assault an inmate and engaging in violent conduct.Separate tier III disciplinary hearings were conducted with respect to the charges contained ineach report. At the conclusion of these hearings, determinations were rendered finding petitionerguilty of all of the charges and these determinations were later affirmed on administrativeappeal. This CPLR article 78 proceeding ensued.
We confirm. Substantial evidence, consisting of the misbehavior report and the testimonyadduced at the first disciplinary hearing, supports the determination finding petitioner guilty ofcreating a disturbance and making threats (see Matter of Wigfall v Goord, 53 AD3d[*2]943, 943 [2008]; Matter of Lewis v Goord, 43 AD3d 1259 [2007], lvdismissed 9 NY3d 1030 [2008]). The determination finding petitioner guilty of conspiring toassault an inmate and engaging in violent conduct is supported by substantial evidenceconsisting not only of the misbehavior report and the testimony of its author, but also theconfidential information considered by the Hearing Officer in camera (see Matter of Hill v Fischer, 69 AD3d1103, 1103 [2010]; Matter of Brittv Fischer, 54 AD3d 1087, 1087 [2008]). Petitioner's challenge to the sufficiency of themisbehavior reports is not preserved for our review given his failure to raise it at the hearings orin his administrative appeals (seeMatter of Gaines v Fischer, 67 AD3d 1080, 1081 [2009]). Therefore, we find no reasonto disturb the determinations at issue.
Mercure, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur. Adjudged that thedeterminations are confirmed, without costs, and petition dismissed.